Watson v. Fedex Ground Package System

• Court: District Court, S.D. Illinois
• Decided: January 13, 2025
• Docket: 3:23-cv-03552
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DANA WATSON,

Plaintiff,

v. Case No. 23-CV-03552-SPM

FEDEX GROUND PACKAGE SYSTEM, INC.,

Defendant.

CONFIDENTIALITY ORDER McGLYNN, District Judge: This matter is before the Court on a Motion for Entry of Protective Order pursuant to Federal Rule of Civil Procedure 26(c) filed by Defendant Federal Express Corporation, successor by merger to FedEx Ground Package System, Inc. (“FedEx”). (See Doc. 46). FedEx indicates that pro se Plaintiff Dana Watson does not consent to the entry of any protective order in this case. (See id., ¶ 6). The Court has determined that the terms set forth herein are appropriate to protect the respective interests of the parties, the public, and the Court. However, the Court finds that the protective order shall not include a liquidated damages provision, as this Court is not required to issue liquidated damages under Federal Rule 26(c). See, e.g., Hystad Ceynar Mins., LLC v. XTO Energy, Inc., No. 1:23-CV-00030, 2024 WL 418133, at *1–2 (D.N.D. Jan. 5, 2024); Sony Comput. Ent. Am., Inc. v. NASA Elecs. Corp., 249 F.R.D. 378, 381 (S.D. Fla. 2008). Accordingly, for good cause shown, FedEx’s Motion is GRANTED in part and DENIED in part. Therefore, the Court ENTERS the following Protective Order. It is HEREBY ORDERED that the parties, non-party signatories, and non- party witnesses shall follow the procedures set forth below with respect to certain documents, information, or testimony provided or exchanged in this or related actions or proceedings:

1. Scope. All materials produced or adduced in the course of discovery, including initial disclosures, responses to discovery requests, deposition testimony and exhibits, and information derived directly therefrom (hereinafter collectively “documents”), shall be subject to this Order concerning Confidential Information as defined below. This Order is subject to the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods. 2. Confidential Information. As used in this Order, “Confidential

Information” means information designated as “CONFIDENTIAL INFORMATION” by the producing party that falls within one or more of the following categories: (a) information prohibited from disclosure by statute; (b) information that reveals trade secrets; (c) research, technical, commercial or financial information that the party has maintained as confidential; (d) medical information concerning any individual; (e) personal identity information, such as dates of birth, social security numbers, and

financial account numbers; (f) income tax returns (including attached schedules and forms), W-2 forms and 1099 forms; (g) personnel or employment records of a person who is not a party to the case; (h) names and contact information of current and/or former employees or residents/patients of Defendant; or (i) financial records, work records, and/or sales data/information pertaining to any individual or party. Each of the aforesaid categories of information and documents is likely to be at issue in this matter, and all of the aforesaid categories of information and documents concern private and confidential information of parties and non-parties alike. Information or documents that are available to the public may not be designated as Confidential

Information.

3. Designation. (a) A party may designate a document as Confidential Information for protection under this Order by placing or affixing the words “CONFIDENTIAL INFORMATION” on the document and on all copies in a manner that will not interfere with the legibility of the document. As used in this Order, “copies” includes

electronic images, duplicates, extracts, summaries or descriptions that contain Confidential Information. The marking “CONFIDENTIAL INFORMATION” shall be applied prior to or at the time of the documents are produced or disclosed. Applying the marking “CONFIDENTIAL INFORMATION” to a document does not mean that the document has any status or protection by statute or otherwise except to the extent and for the purposes of this Order. Any copies that are made of any documents

marked “CONFIDENTIAL INFORMATION” shall also be so marked, except that indices, electronic databases or lists of documents that do not contain substantial portions or images of the text of marked documents and do not otherwise disclose the substance of the Confidential Information are not required to be marked. (b) Either party may mark any document it believes contains confidential or proprietary information as “Confidential Information” in accordance with the provisions of this Order.

4. Depositions. Deposition testimony is protected by this Order only if designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” on the record at the time the testimony is taken. Such designation shall be specific as to the portions that contain Confidential Information. Deposition testimony so designated shall be treated as Confidential Information protected by this Order until fourteen (14) days after delivery of the transcript by the court reporter to any party or the witness. Within fourteen (14) days after delivery of the transcript, a designating party

may serve a Notice of Designation to all parties of record identifying the specific portions of the transcript that are designated Confidential Information, and thereafter those portions identified in the Notice of Designation shall be protected under the terms of this Order. The failure to serve a timely Notice of Designation waives any designation of deposition testimony as Confidential Information that was made on the record of the deposition, unless otherwise ordered by the Court.

5. Protection of Confidential Material. (a) General Protections. Confidential Information shall not be used or disclosed by the parties, counsel for the parties or any other persons identified in subparagraph (b) for any purpose whatsoever other than in this litigation, including any appeal thereof. (b) Limited Third-Party Disclosures. The parties and counsel for the parties shall not disclose or permit the disclosure of any Confidential Information to any third person or entity except as set forth in subparagraphs (1)–(9). Subject to these

requirements, the following categories of persons may be allowed to review Confidential Information: (1) Counsel. Counsel for the parties and employees of counsel who have responsibility for the action; (2) Parties. Individual parties and employees of a party but only to the extent counsel determines in good faith that the employee’s assistance is reasonably necessary to the conduct of the litigation in which the information

is disclosed; (3) The Court and its personnel; (4) Court Reporters and Recorders. Court reporters and recorders engaged for depositions; (5) Contractors. Those persons specifically engaged for the limited purpose of making copies of documents or organizing or processing documents,

including outside vendors hired to process electronically stored documents; (6) Consultants and Experts. Consultants, investigators, or experts employed by the parties or counsel for the parties to assist in the preparation and trial of this action but only after such persons have completed the certification contained in Attachment A, Acknowledgment of Understanding and Agreement to Be Bound; (7) Witnesses at depositions. During their depositions, witnesses in this action to whom disclosure is reasonably necessary. Witnesses shall not retain a copy of documents containing Confidential Information, except witnesses

may receive a copy of all exhibits marked at their depositions in connection with review of the transcripts. Pages of transcribed deposition testimony or exhibits to depositions that are designated as Confidential Information pursuant to the process set out in this Order must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Order. (8) Author or recipient. The author or recipient of the document (not

including a person who received the document in the course of litigation); and (9) Others by Consent. Other persons only by written consent of the producing party or upon order of the Court and on such conditions as may be agreed or ordered. (c) Use in Other Litigation. The Confidential Information described herein shall in no way be utilized in any other litigation, complaint, and/or charge against

Defendants, their affiliates, or their employees, unless so stipulated by the parties and/or their representatives and agents. (d) Control of Documents. Counsel for the parties shall make reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel shall maintain the originals of the forms signed by persons acknowledging their obligations under this Order for a period of three years after the termination of the case. 6. Inadvertent Failure to Designate. An inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to so designate the document; provided, however, that a failure to serve a timely Notice of Designation of deposition testimony as required by this Order, even if inadvertent, waives any protection for deposition testimony. If a party designates a document as Confidential Information after it was initially produced, the receiving party, on notification of the designation, must make a reasonable effort to assure that the document is treated in accordance with the provisions of this Order. No party shall

be found to have violated this Order for failing to maintain the confidentiality of material during a time when that material has not been designated Confidential Information, even where the failure to so designate was inadvertent and where the material is subsequently designated Confidential Information. 7. No Greater Protection of Specific Documents. Except on privilege grounds not addressed by this Order, no party may withhold information from

discovery on the ground that it requires protection greater than that afforded by this Order unless the party moves for an order providing such special protection. 8. Challenges by a Party to Designation as Confidential Information. The designation of any material or document as Confidential Information is subject to challenge by any party. The following procedure shall apply to any such challenge. (a) Meet and Confer. A party challenging the designation of Confidential Information must do so in good faith and must begin the process by conferring directly with counsel for the designating party. In conferring, the challenging party must

explain the basis for its belief that the confidentiality designation was not proper and must give the designating party an opportunity to review the designated material, to reconsider the designation, and, if no change in designation is offered, to explain the basis for the designation. The designating party must respond to the challenge within fifteen (15) business days. (b) Judicial Intervention. A party that elects to challenge a confidentiality designation may file and serve a motion that identifies the challenged material and

sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements of this procedure. The burden of persuasion in any such challenge proceeding shall be on the designating party. Until the Court rules on the challenge, all parties shall continue to treat the materials as Confidential Information under the terms of this Order.

9. Action by the Court. Applications to the Court for an order relating to materials or documents designated Confidential Information shall be by motion. Nothing in this Order or any action or agreement of a party under this Order limits the Court’s power to make orders concerning the disclosure of documents produced in discovery or at trial. 10. Use of Confidential Documents or Information at Trial. Nothing in this Order shall be construed to affect the use of any document, material, or information at any hearing or trial.

11. Confidential Information Subpoenaed or Ordered Produced in Other Litigation. (a) If a receiving party is served with a subpoena or an order issued in other litigation that would compel disclosure of any material or document designated in this action as Confidential Information, the receiving party must so notify the designating party, in writing, immediately and in no event more than three (3) business days after receiving the subpoena or order. Such notification must include a

copy of the subpoena or court order. (b) The receiving party also must immediately inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is the subject of this Order. In addition, the receiving party must deliver a copy of this Order promptly to the party in the other action that caused the subpoena to issue.

(c) The purpose of imposing these duties is to alert the interested persons to the existence of this Order and to afford the designating party in this case an opportunity to try to protect its Confidential Information in the court from which the subpoena or order issued. The designating party shall bear the burden and the expense of seeking protection in that court of its Confidential Information, and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. The obligations set forth in this paragraph remain in effect while the party has in its possession, custody or control Confidential Information by the other party to this

case. 12. Obligations on Conclusion of Litigation. (a) Order Continues in Force. Unless otherwise agreed or ordered, this Order shall remain in force after dismissal or entry of final judgment not subject to further appeal. (b) Obligations at Conclusion of Litigation. Within forty-five (45) days after dismissal or entry of final judgment not subject to further appeal, all Confidential

Information and documents marked “CONFIDENTIAL INFORMATION” under this Order, including copies as defined in ¶ 3(a), shall be returned to the producing party unless: (1) the document has been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction to the extent practicable in lieu of return; or (3) as to documents bearing the notations, summations, or other mental impressions of the receiving party, that party elects to destroy the documents and

certifies to the producing party that it has done so. (c) Retention of Work Product and One Set of Filed Documents. Notwithstanding the above requirements to return or destroy documents, counsel may retain (1) attorney work product, including an index that refers or relates to designated Confidential Information so long as that work product does not duplicate verbatim substantial portions of Confidential Information, and (2) one complete set of all documents filed with the Court. Any retained Confidential Information shall continue to be protected under this Order. An attorney may use his or her work product in subsequent litigation, provided that its use does not disclose or use

Confidential Information. 13. Order Subject to Modification. This Order shall be subject to modification by the Court on its own initiative or on motion of a party or any other person with standing concerning the subject matter. 14. No Prior Judicial Determination. This Order is entered based on the representations and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall be construed or presented as a judicial determination

that any document or material designated Confidential Information by counsel or the parties is entitled to protection under the Federal Rules of Civil Procedure or otherwise until such time as the Court may rule on a specific document or issue. 15. Nothing in this order will prejudice either party from seeking amendments broadening or restricting the rights of access to and the use of Confidential Information, or contesting the designation of Confidential Information

or qualified persons. No such amendments or modifications shall be made a part of this Order without agreement of the parties or Order of the Court. 16. Persons Bound. This Order shall take effect when entered and shall be binding upon all counsel of record and their law firms, the parties, and persons made subject to this Order by its terms. IT IS SO ORDERED. DATED: January 13, 2025

s/ Stephen P. McGlynn STEPHEN P. McGLYNN U.S. District Judge IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he/she has read the Protective Order dated January 13, 2025 in the above-captioned action and attached hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction of the Court in matters relating to the Protective Order and understands that the terms of the Protective Order obligate him/her to use materials designated as Confidential Information in accordance with the Order solely for the purposes of the above-captioned action, and not to disclose any such Confidential Information to any other person, firm or concern. The undersigned acknowledges that violation of the Protective Order may result in penalties, including contempt of Court, for disobedience of said Order.

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